JUDGMENT OF OLLENNU J.
(His lordship referred to the facts, and continued.)
The last paragraph of the trial court's judgment contains findings of fact, as well as a statement of customary law. The findings of fact are:—
(1) the land in dispute immediately adjoins a cocoa farm belonging to the defendant;
(2) the plaintiff acquired by purchase a farmstead also adjoining the forest land in dispute;
(3) the defendant was in possession of his cocoa farm long before the plaintiff acquired title to his farmstead; and
(4) even if the plaintiff did cultivate a portion of the alleged forest, there is no evidence that he planted anything in the area so as to reduce it into his possession.
[p.68]
The statement of customary law is that a subject of a stool is entitled to cultivate forest or vacant stool land adjoining which he has already farmed, so as to reduce that forest or vacant area into an additional farm, provided that by so doing he does not interfere with a similar right which has accrued to another subject owning a farm on another side of the forest or vacant land.
The facts found by the native court are amply supported by the evidence on the record — even by evidence of the plaintiff and his witnesses; there can be no quarrel with these findings. As to the principle of customary law enunciated by the native court, it is well to point out that that principle was the very basis upon which the defendant had founded his case.
In those circumstances the forest land in respect of which the plaintiff sued cannot by customary law be in the exclusive possession of the plaintiff, nor be one in which the plaintiff had a vested right to exclusive possession at the date when the defendant cultivated it. Particularly is this the case when, for thirteen years or more, the plaintiff had not made use of his farmstead adjoining the forest, and had never planted anything on that portion of the forest land which he alleged he had cleared. Since by customary law the defendant too had a right to cultivate the forest land (or a portion of it) he could not commit trespass to it, and by entering upon it, cultivating it and planting it with cocoa, he did not infringe any possessory right of the plaintiff, and did not commit trespass. The native court was therefore justified in dismissing the plaintiff’s claim, and in entering judgment for the defendant.
For the reasons given above the plaintiff’s appeal is dismissed.
DECISION
Appeal dismissed.
